John Moore et al. v. W. Hudson Connery, Jr. (2013)

MEMORANDUM OF DECISION RE MOTION TO REARGUE/RECONSIDER AND VACATE # 140

INTRODUCTION

The defendant has requested that the court reconsider its decision as to the motion to dismiss which was entered on September 24, 2013.  (Court Entry # 138.)   The defendant contends that there was a mistake made in having the court decide the motion on the papers and thus has requested that the court permit argument and reconsideration of the decision based upon argument and additional memorandum of law.   A reply to the motion to dismiss was filed on November 8, 2013, a sur-reply was filed on November 12, 2013, and on November 15, 2013 a response to the argument before the court with supporting documents was filed.

On October 21, 2013, the court granted the request for argument and the parties appeared and argued on November 12, 2013.   Based upon the argument of counsel and reconsideration of the memorandum submitted by the parties with the additional memorandum, the court denies the motion to vacate the September 24, 2013 decision of the court as to the Motion to Dismiss and incorporates the September 24, 2013 decision with this Memorandum of Decision affirming the denial of the motion to dismiss.

FACTUAL AND PROCEDURAL BACKGROUND

On March 26, 2006, Ann May Moore and Hudson Connery, Jr. purchased the property at 11 Soundview Place in the City of Milford.   At the time of purchase they were not husband and wife although prior to her illness and death they married.   The property at 11 Soundview Place was purchased by Moore and Connery with a Trustee Deed as joint tenants with the right of survivorship.   This never changed.   After the purchase, they built a home on the property for their residence.   The plaintiffs are the children of Ann May Moore from a prior marriage and contend that defendant, Connery and Moore agreed before her death that the defendant would transfer one-half of the property through a constructive trust to be shared equally by the three children.   After her death, the defendant submitted the estate to the Probate Court.   The property at issue was not listed on the inventory filed in the Probate Court.   The plaintiffs did not challenge the inventory, did not object to the exclusion of the property in the inventory, or request that the property be included within the inventory to Probate.   There has been other litigation between the parties but it has not included the particular piece of property now subject to this action.   The defendant filed a motion to dismiss dated August 8, 2013 arguing that the court lacks subject matter because the plaintiffs failed to file any claim in the Probate Court or file an objection to the Inventory in Probate Court.   The plaintiffs filed an objection to the motion on September 4, 2013.   The matter was assigned for argument and on September 16, 2013 the court was informed the matter was to be decided on the papers.   After review of the argument set forth by each of the parties in their memorandum, the court filed a memorandum of decision denying the motion to dismiss.  (Court Entry # 138.)   The defendant has filed a motion with the court arguing that the parties did not intend to have the matter taken on the papers and requesting that the court permit the parties to appear and argue the motion to dismiss, file additional memorandum and vacate the decision of the motion to dismiss.   The court has permitted argument which was conducted on November 12, 2013.

DISCUSSION

“[T]he purpose of a reargument is ․ to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts ․ It also may be used to address ․ claims of law that the [movant] claimed were not addressed by the court ․ [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple.”   (Citations omitted;  internal quotation marks omitted.)  Opoku v. Grant, 63 Conn.App. 686, 692–93, 778 A.2d 981 (2001).  “The granting of a motion for reconsideration ․ is within the sound discretion of the court.”  (Internal quotation marks omitted.)  Mangiante v. Niemiec, 8 Conn.App. 567, 575–77, 910 A.2d 235 (2006).  “A reconsideration implies reexamination and possibly a different decision by the [court] which initially decided it.”  (Internal quotation marks omitted.)  Id., 577.   Based upon the representations of the defendants that the parties have argument for the court, the court has permitted the parties to argue the motion.   As stated in the prior decision regarding the motion to dismiss, it properly attacks the jurisdiction of the court by asserting that the plaintiff is unable, as a matter of law, and fact, to state a cause of action that can be heard in the particular forum.   Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991).  “A motion to dismiss tests, inter-alia, whether, on the face of the record, the court is without jurisdiction ․” (Internal quotation marks and citation omitted.)   Filippi v. Sullivan, 273 Conn. 1, 8 (2005).   In ruling on a pretrial motion to dismiss, a court must consider the allegations of the complaint in their most favorable light and must take the facts to be those alleged in the complaint, including the facts necessarily implied from those allegations, construing them in a manner most favorable to the pleader.  Id. “[I]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”   (Internal quotation marks omitted.)  Amodio v. Amodio, 247 Conn. 724, 728 (1999).  “[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter what form it is presented ․ and the Court must fully resolve it before proceeding with the case.”  (Internal quotation marks omitted.)  Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997).

The argument presented to the court at this hearing was not substantially different than the arguments set forth in the memorandum of the parties regarding the passage of the property at 11 Soundview Place in Milford through the joint suvivorship agreement.   The defendant cites the case of Moneta v. Moneta, Superior Court, judicial district of Meriden, Docket No. CV 030284642 (January 6, 2005, Arnold, J.) in support of his position that the plaintiffs were obligated to challenge the passage of the Soundview property at the time the estate was filed in the Probate Court.   The facts in Moneta are distinguishable from the instant action.   In Moneta there was a challenge to the passage of joint ownership accounts to the son, Peter Moneta, from the deceased, Vera, because the siblings claimed there was undue influence exerted by him.   Thus, the claim that the property should have been included in the estate was addressed in the Moneta Probate proceedings and decided by that court.   The Superior Court action was an appeal of that Probate decision.   Unlike the present action, the parties in Moneta raised the issue of the passage of the joint accounts as part of the Probate hearings and not for the first time in a civil action.   The defendant referred to the filing on land records as to the property but this filing does not change the fact that the Probate Court never had the opportunity to address this issue as part of the property of the estate because the real property passed to the defendant outside of Probate.   It was never a part of the inventory in the Probate Court.   Joint accounts with rights of survivorship pass outside of the will and do not become a part of the decedent's estate.   Massini v. Massini, Superior Court, judicial district of Middlesex, Docket No. 60723 (June 4, 1992, Austin, J.) (7 Conn. Rptr. 639).   No one ever raised this issue in the Probate proceedings.   Not only are the factual and procedural issues distinct, but the court in Moneta recognized the law on joint ownership as outside the inventory of the estate.

This court has previously addressed the argument that this court does not have jurisdiction and that the property passed outside the scope of Probate as it was held in joint survivorship with the right of survivorship clearly with the defendant.   There is no new evidence or testimony that would support a change in the decision of the court on the motion to dismiss.   The September 24, 2013 decision of the Court is incorporated and the motion to dismiss is denied.

THE COURT

Brazzel–Massaro, J.

Brazzel–Massaro, Barbara, J.